Chronicling The Trans Mountain Expansion Project's Path To Legal Certainty

• Published date: 22 July 2020
• Subject Matter: Environment, Government, Public Sector, Energy and Natural Resources, Energy Law, Environmental Law, Oil, Gas & Electricity, Constitutional & Administrative Law, Indigenous Peoples
• Law Firm: Fasken
• Author: Ms Bridget Gilbride and Niall Rand

The Supreme Court of Canada ("SCC") will not hear appeals by three First Nations seeking to overturn the federal government's second approval of the Trans Mountain Expansion Project (the "Project" or "TMX"). The First Nations were seeking to appeal the February 2020 decision of the Federal Court of Appeal, which found the government's second round of consultation related to the Project to be sufficient. With this dismissal, there are no longer any outstanding legal challenges to the Project.

Below we provide an outline of the legal challenges the Project has faced since it was proposed in 2013.

The Long Road to Certainty

In December 2013, Trans Mountain applied to the National Energy Board ("NEB") for permission to build and operate the Project.

The NEB conducted extensive hearings, commencing in April 2014, during which it received submissions from over 1,600 participants, consisting of approximately 400 intervenors and 1,250 commenters.

In September 2014, the City of Burnaby applied for an injunction¹ in the BC Supreme Court seeking to stop work on the Project within the Burnaby Mountain Conservation Area, which it argued was contrary to municipal bylaws. The Court found that the National Energy Board Act gave Trans Mountain the right to enter into private lands, including the Burnaby Mountain Conservation Area, to conduct its preliminary studies, and that any appeal of the NEB's ruling ought to be brought to the Federal Court of Appeal. Leave to appeal this decision was denied by the BC Court of Appeal.²

In October 2014, the NEB determined that the City of Burnaby did not have jurisdiction to prevent work on the Project and its by-laws were inapplicable to the Project. The City of Burnaby sought leave to appeal this decision to the Federal Court of Appeal, which was denied.

In November 2014, the BC Supreme Court issued an injunction3 against protestors who were impeding survey and drilling work at the Burnaby Mountain worksite, leading to the arrest of over 100 people. A subsequent application to extend the duration of the injunction a further two weeks was denied by the Court.⁴

In October 2015, the City of Burnaby returned to the BC courts and argued that the NEB did not have jurisdiction to consider constitutional conflicts between Burnaby's bylaws and the powers granted under the National Energy Board Act. These arguments were dismissed by both the Supreme Court in November 2015,⁵ and the Court of Appeal in March 2017.⁶

In October 2015, the Federal Liberals, under Justin Trudeau, won a majority government in Parliament, ending over nine years of Conservative governments.

In May 2016, the NEB issued its report recommending that the Federal Government approve the Project, subject to 157 conditions.

In November 2016, the Federal Governor in Council (effectively, the Federal Cabinet) approved the Project and directed the NEB to issue a Certificate of Public Convenience and Necessity for the Project. The Trudeau Government committed to getting the Project built.

Following the approval, in December 2016, the City of Burnaby stalled on its approval of multiple planning applications and a tree plan, which prevented Trans Mountain from commencing work on the Project. In response, in October 2017, Trans Mountain brought a motion to the NEB, seeking exemption from compliance with Burnaby's bylaws. In January 2018, the NEB found that Burnaby's bylaw review process was unreasonable, and caused unreasonable delay, and therefore exempted Trans Mountain from obtaining permits under those bylaws by declaring them inapplicable. The Federal Court of Appeal dismissed Burnaby's application for leave to appeal the decision. Leave to appeal was subsequently denied to the SCC.

In January 2017, the Province of British Columbia issued an environmental assessment certificate ("EAC") pursuant to an Equivalency Agreement with the NEB. The permit contained 37 additional conditions that Trans Mountain was required to fulfill before and during construction.

In June 2017, the government in the Province of British Columbia changed hands, from a majority Liberal government to a minority NDP government, supported by the Green Party. The NDP and the Green Party committed to taking steps to stop the Project from being built.

In March 2018, Trans Mountain was granted...